The Israeli Anti-BDS Nonprofit Strategy Shows Professional Ethics, Legitimate Legal Planning
Anonymous, a notorious hacker organization, broke into the Israeli Ministry of Justice and gained access to correspondence showing Israel sought and received legal advice on how U.S. nonprofits acting “in coordination with the Israeli government” can avoid the registration and disclosure requirements under the Foreign Agents Registration Act (FARA). The U.S. nonprofits were afraid, according to an investigative report, that they would suffer reputational harm if people knew Israel was the real shot-caller. Other donors might scatter.
The truth is that a nonprofit that acts “in coordination with” a foreign government probably can’t ever avoid FARA. But I am no FARA expert. Neither were Ministry of Justice lawyers so they sought legal advice about it and all that work product got hacked and then published. Damn, those meddling kids! Here is the intro to the report:
The Israeli government sought legal advice on a US federal law requiring the disclosure of foreign-backed lobbying campaigns, out of concerns that mounting enforcement of the law could ensnare American groups working in coordination with the Israeli government, leaked documents reviewed by the Guardian suggest. Emails and legal memos originating from a hack of the Israeli justice ministry show that officials feared Israeli advocacy efforts in the US could trigger the US law governing foreign agents. The documents show that officials proposed creating a new American nonprofit in order to continue Israel’s activities in the US while avoiding scrutiny under the law.
What bothers me is the title. The report is entitled “Leaked Israeli Docs Reveal Effort to Evade Foreign Agent Lobbying Law.” It’s that word “evade.” I’m not exactly in the mood to defend Israel right now. But this story, or at least the headline, is kinda bullshit. Because there is a big difference between “evade” and “avoid.” Evade requires lying, cheating, or stealing in every case. I tell my students this all the time. “Avoid” means not doing something that will get your ass taxed. One iota of lying, cheating, or stealing turns “avoid” into “evade” and you will get disbarred. Talking to an attorney is not an effort to evade, though the client might seek to avoid. Nonprofits and their foreign principals actually comply, not evade, when they seek legal advice on how to avoid. That’s what Israel and its attorneys did in this case.
The discussions around circumnavigating FARA focused on a “PR commando unit” formed by Israel’s Ministry of Strategic Affairs in 2017 to improve Israel’s image abroad. The group, a private-public partnership, was originally known as “Kela Shlomo” (which translates to “Solomon’s Sling”) before being rebranded as “Concert” in 2018 and “Voices of Israel” in 2022. Its initial mission was to undermine the BDS movement targeting Israel with boycott, divestment and sanctions campaigns in protest of its policies towards Palestinians. Over the course of its history, the group has supported American nonprofits advocating for anti-BDS laws and coordinated campaigns to push back against pro-Palestinian activities on US campuses.
I love this stuff. Grisham should write a book and make a movie. I actually dug into the story in hopes of finding the legitimate legal advice sought and given. I found it, but the memos and emails are all written in Hebrew and (except for two linked in the article) they are in a huge database that I was afraid to download for fear of shutting the whole university down. But I will say this. The advice as interpreted in the report is of the aggressive sort that would give me academic pause, at least: “To prevent FARA registration, and the stigma and scrutiny associated with it, the legal advisors suggested channeling funds through a third-party American nonprofit.” If “channeling” means “funneling” you understand my uncomfortable feeling. The memo as reported continues on that aggressive path — recommending that Israel pursue its advocacy through a nominally independent nonprofit — but ultimately I think it relayed advice ethically and legitimately sought and given:
Liat Glazer, then a legal advisor to Israel’s Ministry of Strategic Affairs, writes that even though the nonprofit would not be formally managed from Israel, “we will have means of supervision and management” – for example, through grant-making and “informal coordination mechanisms” including “oral meetings and updates.”
It’s ok to help clients circumnavigate — i.e., avoid — so long as you don’t lie, cheat, or steal. Here, the legal advice is essentially to effectuate an outcome — advocacy against BDS via economic incentives or de facto control — rather than by binding contract explicitly in violation of FARA. Risky yes, but it might work without lying, cheating, or stealing. We do this all the time. Donor Advised Funds much? This is what lawyers, and especially tax lawyers, are supposed to do. We help the client achieve the desired outcome — control, or its result — without violating the law.
Hate the game, baby, don’t hate the player.
darryll k. jones